Trade secrets

Following the whitepaper on “Reasonable steps” to protect trade secrets, (you can find a brief overview and the link to the paper here, CREATe.org published its Eight steps to secure trade secrets.

The purpose of this guide is to help understand the management system component of trade secret protection. It provides you with practical advice and tools so you can more efficiently develop and implement a trade secret protection program that is appropriate for your company and the risks it faces. This guide starts by providing a roadmap for you to use in starting, or enhancing, a trade secret protection program. Next, the Guide looks at each of the eight areas of an effective trade secret protection program in more detail. For each area – called business process categories – there are specific activities that you can use as a checklist against your current program or for improvement project ideas. These check- lists are just a starting point – each activity can be broken down into a greater level of detail or be fine-tuned to your specific priorities.

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Protecting companies’ confidential business and technical information – “trade secrets” – is becoming a major priority of the private sector and governments around the world. Trade secrets and other intellectual property and intangible assets represent the bulk of the overall value of many companies.

The authors of this whitepaper from the Center for Responsible Enterprise And Trade (CREATe.org) review the “reasonable steps” requirement for protecting trade secrets. They look at international, regional and national laws and legislation; consider the types of protections that companies have implemented; and look at court cases that examine “reasonable steps” taken by companies.

National and regional laws – perhaps unsurprisingly in a globally connected economy – continue to converge as to the elements required for proprietary information to qualify for legal protection as trade secrets. It is thus vital for companies to understand what “reasonable steps” need to be implemented to protect trade secrets in accordance with these laws, and to look to leading practices that companies around the world are using to protect such information. The very legal protections that a company hopes to secure for its proprietary information very much depend on taking such “reasonable steps.”

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This paper by Jennifer Brant and Sebastian Lohse intends to inform policymakers about the contribution of trade secrets to knowledge transfer and collaborative innovation, with emphasis on technological know-how. It also aims to inform policymakers about certain shortcomings in existing frameworks for trade secret protection, which can undermine cross-border collaboration in particular.

The authors of this paper describe the value of trade secrets to innovative firms of all sizes and the role of trade secret protection in facilitating knowledge flows. At the same time, it identifies several factors that complicate the protection and management of trade secrets in today’s business environment. Many of the factors relate to the business environment itself, which is characterized by networked R&D and open innovation, globally dispersed teams of employees, increased employee mobility, digital storage of data, and the growing value of know-how as a source of competitive advantage – and thus a target for corporate theft.

Other risk factors derive from inadequate legal frameworks for trade secret protection, which make it difficult for trade secret owners to recover in the event of misappropriation. Legal fragmentation across countries, and even within countries and economically integrated areas, compounds this difficulty and further compromises collaboration and the sharing of know-how with external partners.

To overcome the challenges described in this paper, policymakers and industry groups may consider providing training for SMEs, to guide them in using trade secrets as part of their intellectual asset management strategies. Compared to larger firms, SMEs have relatively lower levels of experience with and fewer resources to dedicate to IP management. Innovative SMEs are likely to benefit from training on the appropriate actions they must take to protect confidential business information, in order to be able to enforce their rights before the courts in the event of misappropriation. They could also benefit from insights into how to institute effective processes for managing confidential information internally and vis-à-vis partners.

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Trade Secrets Watch is a blog on all things trade secrets. It’s run by trade secret attorneys at the law firm Orrick, Herrington & Sutcliffe LLP. The blog offers the latest trade secret news and analysis from the United States and across the globe. It covers recent cases and proposed legislation, verdicts and settlements, practice tips, upcoming events, and other interesting trade secret tidbits.

This 2014 paper by Doug Lippoldt and Mark Schultz presents information about trade secrets protection, management, and role in innovation. The authors recommend actions that policymakers can take to improve trade secrets regimes. The paper was published as part of the E15 initiative of ICTSD. Although old, the analysis is still relevant to those interested in understanding trade secrets.